I read an interesting legal theory today which argues that Obama can bypass the Senate and appoint Garland to the court if the Senate fails to act for a long enough period. While I am skeptical of the theory, if this deadlock continues, I wouldn't object to seeing this play out. Here is (in part) what I read:

The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president"s nominations. Start with the appointments clause of the Constitution. It provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint .R01;.R01;. Judges of the supreme Court, and all other Officers of the United States." Note that the president has two powers: the power to "nominate" and the separate power to "appoint." In between the nomination and the appointment, the president must seek the "Advice and Consent of the Senate." What does that mean, and what happens when the Senate does nothing?

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege.

[...]

The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland"s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

At 4/9/2016 6:23:31 AM, bsh1 wrote:I read an interesting legal theory today which argues that Obama can bypass the Senate and appoint Garland to the court if the Senate fails to act for a long enough period. While I am skeptical of the theory, if this deadlock continues, I wouldn't object to seeing this play out. Here is (in part) what I read:

The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president"s nominations. Start with the appointments clause of the Constitution. It provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint .R01;.R01;. Judges of the supreme Court, and all other Officers of the United States." Note that the president has two powers: the power to "nominate" and the separate power to "appoint." In between the nomination and the appointment, the president must seek the "Advice and Consent of the Senate." What does that mean, and what happens when the Senate does nothing?

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege.

[...]

The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland"s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

At 4/9/2016 6:23:31 AM, bsh1 wrote:I read an interesting legal theory today which argues that Obama can bypass the Senate and appoint Garland to the court if the Senate fails to act for a long enough period. While I am skeptical of the theory, if this deadlock continues, I wouldn't object to seeing this play out. Here is (in part) what I read:

The Constitution glories in its ambiguities, however, and it is possible to read its language to deny the Senate the right to pocket veto the president"s nominations. Start with the appointments clause of the Constitution. It provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint .R01;.R01;. Judges of the supreme Court, and all other Officers of the United States." Note that the president has two powers: the power to "nominate" and the separate power to "appoint." In between the nomination and the appointment, the president must seek the "Advice and Consent of the Senate." What does that mean, and what happens when the Senate does nothing?

It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege.

[...]

The president has nominated Garland and submitted his nomination to the Senate. The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent. What date? The historical average between nomination and confirmation is 25 days; the longest wait has been 125 days. That suggests that 90 days is a perfectly reasonable amount of time for the Senate to consider Garland"s nomination. If the Senate fails to act by the assigned date, Obama could conclude that it has waived its right to participate in the process, and he could exercise his appointment power by naming Garland to the Supreme Court.

I thought this argument would be goofy political gamesmanship, but this actually seems pretty reasonable. The refusal of the senate to even consider the nomination is clearly a political maneuver taking advantage of a loophole in the Constitution. The ability of the Senate to simply not consider a nomination ought to be fixed.

This proposal basically acknowledges that the President would be putting forward a novel interpretation of the Senate's failure to act but places the responsibility of evaluating the merits of the interpretation on the court. At the least the proposal breaks a logjam and opens a path towards clarifying what is clearly a legal ambiguity.

I'm not a legal scholar, I don't know the actual legal merits of the proposal, but it sounds reasonable to a lay person and puts the evaluation of the legal merits in the hands of judges where it belongs.

At 4/9/2016 8:28:57 PM, Raisor wrote:I'd be curious about the political fallout though, and whether it is a move that would be worthwhile from a political gamesmanship perspective.

Does resolving the issue actually benefit the Dems? Public opinion seems to be favoring Obama, which could matter in contested senate races.

This is what I am getting at. For people who care about this, it is all winning for Democrats. There is little up-side for the GOP.

Agree, the only upside for the GOP is if they had a shot at winning the general election and then nominating a conservative justice. That's a very long shot at this point unfortunately, and I doubt that Hillary is going to nominate Garland. She will undoubtedly nominate someone that leans further left, making this move backfire big time for the Republicans.

I don't really like the idea that the Senate can just choose not to vote on it. There should be a time limit. But by the same token, I don't necessarily like the idea that someone can die and then be replaced by someone who has much different political leanings. I also don't like the idea of lifetime appointments...and I call myself a constitutional conservative.

At 4/9/2016 8:28:57 PM, Raisor wrote:I'd be curious about the political fallout though, and whether it is a move that would be worthwhile from a political gamesmanship perspective.

Does resolving the issue actually benefit the Dems? Public opinion seems to be favoring Obama, which could matter in contested senate races.

This is what I am getting at. For people who care about this, it is all winning for Democrats. There is little up-side for the GOP.

Agree, the only upside for the GOP is if they had a shot at winning the general election and then nominating a conservative justice. That's a very long shot at this point unfortunately, and I doubt that Hillary is going to nominate Garland. She will undoubtedly nominate someone that leans further left, making this move backfire big time for the Republicans.

I don't really like the idea that the Senate can just choose not to vote on it. There should be a time limit. But by the same token, I don't necessarily like the idea that someone can die and then be replaced by someone who has much different political leanings. I also don't like the idea of lifetime appointments...and I call myself a constitutional conservative.

At 4/9/2016 8:28:57 PM, Raisor wrote:I'd be curious about the political fallout though, and whether it is a move that would be worthwhile from a political gamesmanship perspective.

Does resolving the issue actually benefit the Dems? Public opinion seems to be favoring Obama, which could matter in contested senate races.

This is what I am getting at. For people who care about this, it is all winning for Democrats. There is little up-side for the GOP.

Agree, the only upside for the GOP is if they had a shot at winning the general election and then nominating a conservative justice. That's a very long shot at this point unfortunately, and I doubt that Hillary is going to nominate Garland. She will undoubtedly nominate someone that leans further left, making this move backfire big time for the Republicans.

I don't really like the idea that the Senate can just choose not to vote on it. There should be a time limit. But by the same token, I don't necessarily like the idea that someone can die and then be replaced by someone who has much different political leanings. I also don't like the idea of lifetime appointments...and I call myself a constitutional conservative.

What ideas do you like to change the supreme court system?

I really doubt it will change anytime soon though.

I would be for term limits for one. If not term limits, then possibly something that doesn't allow the death or retirement of a justice to completely change the makeup of the court. I'm sure the framers had a plan when they decided against term limits, but I'm not sure I agree with it at this point.

At 4/9/2016 8:28:57 PM, Raisor wrote:I'd be curious about the political fallout though, and whether it is a move that would be worthwhile from a political gamesmanship perspective.

Does resolving the issue actually benefit the Dems? Public opinion seems to be favoring Obama, which could matter in contested senate races.

This is what I am getting at. For people who care about this, it is all winning for Democrats. There is little up-side for the GOP.

Agree, the only upside for the GOP is if they had a shot at winning the general election and then nominating a conservative justice. That's a very long shot at this point unfortunately, and I doubt that Hillary is going to nominate Garland. She will undoubtedly nominate someone that leans further left, making this move backfire big time for the Republicans.

I don't really like the idea that the Senate can just choose not to vote on it. There should be a time limit. But by the same token, I don't necessarily like the idea that someone can die and then be replaced by someone who has much different political leanings. I also don't like the idea of lifetime appointments...and I call myself a constitutional conservative.

What ideas do you like to change the supreme court system?

I really doubt it will change anytime soon though.

I would be for term limits for one. If not term limits, then possibly something that doesn't allow the death or retirement of a justice to completely change the makeup of the court. I'm sure the framers had a plan when they decided against term limits, but I'm not sure I agree with it at this point.

The idea was that lifetime terms would insulate justices from politics since they didn't need to seek reelection and didn't answer to the other branches of politics. This has proven to be misguided, as the nominations instead just focus on ideologically reliable candidates- to the extent that the right gets angry when GOP appointed justices "betray" them a la Roberts recent compromise rulings and the evolution of Souter. Sort of ironic since that is more or less how justices are supposed to act. I think that a lot of the anger over the supreme court is just due to the court not acting in conformance with certain political ideologies. That might have sounded like a complaint about the right, but I think its true across the political spectrum.

There are some problems with term limits. First, I think they would actually increase the rate of change of the makeup of the court. Term limits would presumably be designed to decrease the length of SC terms, thus increasing the turnover rate of justices. This would mean the court changes more rapidly than in the status quo. Second, linking SC appointments to the national election cycle could result in more instability in decisions and threaten the doctrine of stare decisis. Third, I think the above noted concern of the Founding fathers is legitimate - term limits mean that justices need start thinking about post-bench careers. This could impact their decisions, especially in relation to ideological conformity to a certain political party. Fourth, I think linking SC appointments to national elections actually risks a more extreme SC. In the status quo, there are swings when justices are replaced out (as there woud be with term limits) but overall the makeup of the court doesn't drift too far from the center, see vox article below. With term limits, the makeup of the court is very dependent on how election cycles line up. Basically, if the retirement lineup is say R-R-R-R-D-D-D-D-R (due to 8 years of GOP followed by 8 years of Dem presidency), a Dem win would result in 4 GOP appointees dropping out and being replaced by four Dem appointees, resulting in an 8-1 left leaning court. In contrast, strategic retirement means that justices tend to time retirement to more or less preserve the center of the court. In the above scenario, maybe one or two of the GOP appointees retire and the other two wait it out for the next cycle, and maybe one or two of the Dems gets out as well- resulting in a 6-3 court which leans left but isn't nearly as lopsided.